Sexualized dress codes are one example of the many types of sex discrimination that working women face. Sexual harassment is a specific form of sex discrimination. A 2014 survey indicates that three-in-ten Canadians experience sexual harassment at work.^[1]   

In its 2013 Policy on preventing sexual and gender-based harassment, the OHRC recognized the severe impacts of sexual harassment on working women and trans people. It can reduce employees’ morale, decrease productivity and contribute to physical and emotional effects such as anxiety, depression and posttraumatic stress disorder. The United Nations’ Declaration of the Elimination of Violence Against Women states that sexual harassment is a form of violence against women. Sexual harassment and violence reflect negative attitudes about girls and women. Inappropriate sexual behaviour (sexual jokes, innuendo and unwanted gestures of “affection”) often develops over time and, if left unchecked, may progress to more serious forms.^[2] Physical or sexual assault may be the culmination of ongoing acts of harassment.    

Gender-based harassment is a specific type of sexual harassment defined as “any behaviour that polices and reinforces traditional heterosexual gender norms.”^[3] It is commonly used in an attempt to re-establish gender norms – that is, polarized masculinity and femininity – by putting a person who is perceived to be “deviant” back in their “place.”^[4]

In recent months, high profile reports of sexual harassment, sexual violence and other forms of sex discrimination have appeared in the media; some reflect allegations of widespread sexual harassment in certain Canadian public institutions. This has led to greater dialogue around the impacts of sexual harassment and other discriminatory barriers women face at work. Although sexual harassment cuts across all work sectors, sexual harassment claims are particularly high in traditionally male-dominated industries (such as policing^[5], firefighting,^[6] mining^[7], the military^[8], and construction work^[9]). Women are also more likely to experience sexual harassment at work when they are seen as subservient (e.g. health care workers^[10] or massage therapists), or are isolated from other co-workers, such as live-in domestic caregivers.^[11]

Women are more likely than men to hold precarious employment,^[12] such as low-wage and part-time jobs. Because of this, they may be more likely to be exposed to unwanted sexual advances and other forms of sexual harassment.^[13] Relying on tips may also increase the likelihood of sexual harassment.^[14] To attract customers and earn tips, female employees may be expected to put up with inappropriate sexual behaviour from customers.^[15] These economic factors can also make it harder for employees to complain about the behaviour and get help. At the same time, even women in positions of authority are not free from sexual harassment or inappropriate gender-related behaviour.

Young women, racialized women, lesbian women, immigrant and migrant women, trans people and women with disabilities may also be more at risk for sexual and gender-based harassment. In a decision released in May 2015 (O.P.T. v. Presteve Foods, Ltd.^[16]), the Human Rights Tribunal of Ontario found that an employer subjected two female temporary foreign workers from Mexico to sexual harassment, sexual solicitation and advances that created a sexually poisoned environment. When one of the women tried to object, the company owner threatened to send her back to Mexico unless she submitted to his sexual solicitations and advances. Recognizing the severity of the harassment and their extreme vulnerability, the Tribunal ordered more than $150,000 in damages to one woman and $50,000 to the other.

Sexual harassment and sex discrimination in the restaurant industry are particularly prevalent and affect hosts, bartenders and servers,^[17] most of whom are female.^[18]  Many of these women are young and may be working in their first job. Over one-third (36.8%) of food and beverage servers in Ontario are women between the ages of 15 and 24.^[19] Research indicates that in the restaurant industry, sex discrimination and sexual harassment happen so frequently that they are often seen as just “part of the job.”^[20] Managers, customers and even staff may normalize the behaviour and minimize its effects. However, this discrimination is very harmful to women. Even though it may be a common occurrence, it is still against the law.

Restaurants that make hiring decisions based on sex, age, race, gender identity, ability, and creed (religion) to present a certain company “image” may be violating the Ontario Human Rights Code. Dress codes that require female staff to dress in short skirts, low-cut tops and high heels to attract customers may be discriminatory, and may also make women vulnerable to sexual harassment. ^[21] Employers that fail to prevent sexual harassment, or fail to respond when staff are subjected to unwanted comments or behaviour such as sexual remarks, requests for dates, or inappropriate touching, also contribute to a discriminatory work environment. Employers must make sure their workplaces are free of discrimination and harassment, or they may be liable for violating their employees’ human rights.

The OHRC’s policy position on gender-specific dress codes can be found here.

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Through its public education, policy development, outreach and litigation functions, the Ontario Human Rights Commission (OHRC) continues to work with community partners to challenge gender inequality and promote and advance the human rights of women and trans people in Ontario. Here is some of the work the OHRC has done in the past year:  

Sexual harassment  

The OHRC continues to do public education on its Policy on preventing sexual and gender-based harassment with many audiences across Ontario, including police, community agencies, human resources professionals (in collaboration with the Human Resources Professionals Association) and members of the general public. In the last year alone, the OHRC has reached more than 2,000 people and organizations through presentations, workshops and online webinars on sexual harassment. On June 1, 2015, we released a public statement commemorating Sexual Harassment Awareness Week. The statement advised people and organizations of rights and responsibilities under the Ontario Human Rights Code (Code) with respect to sexual harassment.   

The OHRC continues to support the Government of Ontario’s Action Plan to Stop Sexual Violence and Harassment by being an active member of the Roundtable on Sexual Violence and Harassment. Renu Mandhane, Chief Commissioner of the OHRC, gave the keynote address at the 2015 Government of Ontario’s Summit on Sexual Violence and Harassment in Toronto.

Violence against Indigenous women and girls

The OHRC publicly supported the Government of Ontario’s call for the establishment of a national public inquiry into missing and murdered Indigenous women and girls in Canada. As part of implementing its Action Plan to Stop Sexual Violence and Harassment, we urged the Government of Ontario to consider two reports^[1] from international human rights bodies that support the intersectional perspective of how violence manifests itself against Indigenous women.

The OHRC recommends using a human rights lens to look closely at the systemic aspects of this issue and address the obligations of governments. We are committed to using our mandate and resources to address the human rights aspects of violence against Indigenous women and girls, assist with the federal inquiry into missing and murdered Indigenous women and girls and look at ways to support other Truth and Reconciliation Commission of Canada’s calls to action. We recognize the importance of continuing to do outreach and engage the input of Indigenous communities in our work.

Discrimination based on pregnancy and family status

In 2014, the OHRC updated its Policy on preventing discrimination because of pregnancy and breastfeeding. 

In December 2015, a settlement was reached between the Ottawa Police, a human rights applicant, and the Ontario Human Rights Commission in a case that alleged that a female police officer was denied training, job placement and promotion opportunities because of her family status, sex and maternity leaves. Because of the settlement, the Ottawa Police will, among other things, analyze the data collected in an workforce census to determine the representation of employees based on sex and family status at all levels of the organization and review its policies and procedures to make sure that female police officers, particularly those who take maternity leave and have caregiving responsibilities, have equal opportunities for advancement.

The OHRC is also currently intervening in a case filed at the Human Rights Tribunal of Ontario in which the applicant alleges that a proposed disability accommodation at work was inappropriate and interfered with her eldercare responsibilities.

Sex and disability discrimination

In 2013, the OHRC intervened in Jahn v. MCSCS, a human rights application by a woman with mental health disabilities and cancer. Ms. Jahn alleged that she was placed in segregation at the Ottawa-Carleton Detention Centre for more than 200 days. The parties reached a landmark settlement agreement including commitments by the Ministry of Community Safety and Correctional Services (MCSCS) to improve its treatment of prisoners -- particularly women -- with mental health disabilities.  This has already led to policy changes prohibiting the use of segregation for any prisoner with mental health disabilities barring undue hardship, mental health screening for all prisoners upon admission, and an expert review of how to improve mental health services for women prisoners.

Due to continuing concerns about the overuse and harmful effects of segregation on Code-protected groups, including women, people with mental health disabilities, and Indigenous and racialized prisoners, in January 2016 the OHRC made a submission to MCSCS’ Provincial Segregation Review, calling for the province to end the use of segregation in its correctional facilities.

Sex discrimination and creed discrimination

In its newly-updated Policy on preventing discrimination based on creed, the OHRC recognizes the distinct forms of discrimination women who identify with a creed experience in society. Women who observe a religion  have often faced the brunt of discrimination and prejudice based on creed in Ontario. In some cases, this is due to their greater visibility, or actual or perceived vulnerability. For example, the OHRC research and consultation findings suggest that Muslim women who wear the hijab (headscarf) or niqab (face-veil) have been particularly susceptible to creed-based discrimination, prejudice and harassment, owing in part to their greater visibility. The policy gives guidance on the intersecting forms of discrimination faced by women based on sex, creed and other Code grounds.  

In July 2015, the OHRC released a statement on creed accommodation involving cross-sex contact. It sets out how organizations can address competing rights in these situations.

Sex discrimination and racial profiling

On February 16-18, 2016, the OHRC hosted a policy dialogue on racial profiling with York University in Toronto. During the dialogue, individuals, academics, advocates and community organizations identified specific types of racial profiling and racial discrimination that Indigenous and racialized women face. The OHRC heard that, in addition to being subjected to racial profiling by police, many racialized and Indigenous women are scrutinized by store or mall security staff when shopping, by child welfare systems and referring agencies, by income support program staff, and by healthcare staff.

The information we heard at the racial profiling dialogue will be used to develop our upcoming policy on racial profiling.

Discrimination against trans people   

In the last year, the Ontario Human Rights Commission has tried to remove barriers for trans people by writing to, advising and meeting with government ministries, including the Ministry of Government and Consumer Services, the Ministry of Education, the Ministry of Community Safety and Correctional Services, and the Ontario Public Service, about inclusion in services and employment, such as data systems that properly reflect people’s lived gender identity, and equal access to gendered environments (e.g. washrooms).  

The OHRC also provided input to community and sporting organizations that are developing policies to include trans people. OHRC staff continue toprovide training and public education on the OHRC’s Policy on preventing discrimination because of gender identity and gender expression.

In 2015, the OHRC intervened in a human rights application filed by a trans man alleging discrimination by both the Toronto Police Service and the Ministry of Community Safety and Correctional Services after he was arrested in 2012. The applicant alleges that, despite having official documentation identifying him as man, he was held in women's sections of police and correctional facilities, had his penile prosthetic confiscated, and was required to wear women’s clothing while incarcerated, at court appearances, and when released. The OHRC is seeking systemic remedies relating to the treatment of trans persons in police custody.

The OHRC also continues to monitor the J.T. v. Hockey Canada et al. settlement, which resulted from a human rights application by a trans youth hockey player who was denied access to a locker room in accordance with his gender identity. The OHRC intervened in the application, and in 2014 the parties reached an agreement requiring Hockey Canada to change its policies to allow all players in Ontario to use locker rooms that match their self-identified gender identity, review and revise its procedures to protect privacy about players’ trans status, and provide related training and information to all Ontario coaches, trainers, staff, volunteers, parents/guardians and players.

Relevant OHRC Policies:

Policy on preventing sexual and gender-based harassment

Policy on preventing discrimination because of gender identity and gender expression

Policy on preventing discrimination based on creed

Policy on preventing discrimination because of pregnancy and breastfeeding

Policy and guidelines on discrimination because of family status

Policy and guidelines on racism and racial discrimination

Policy on preventing discrimination based on mental health disabilities and addictions

Removing barriers based on sex and gender

This checklist can help organizations make sure that their dress codes and uniform policies are consistent with Ontario’s Human Rights Code protections relating to sex and gender, as set out in the OHRC’s Policy position on sexualized and gender-specific dress codes.

Dress codes/uniform policies should:

1. Allow for a range of dress/uniform options, for all staff in all front-of-house positions.
2. Not require any staff to wear sexualized, revealing or gender-stereotypical clothing.
3. Make sure that all staff can choose from clothing options, including pants, that are comparable in terms of style, comfort, practicality and coverage, regardless of sex or gender.
4. Offer uniform sizes that fit a wide range of body types. 
5. Make all dress code options available by default, rather than only offering certain options by request.
6. Not include grooming or appearance rules or expectations for women that are more onerous than those for men, or that are sexualized or based on stereotypical ideas of female attractiveness.
7. Allow for a range of hairstyles, and not require a specific hairstyle unless it is a legitimate requirement of the job (e.g. food preparation).
8. Specify that applicants or interviewees cannot be asked to identify what kind of uniform option they will choose to wear until they have been given an offer of employment.
9. Include processes for handling dress code-related accommodation requests and complaints.
10. Be communicated with and freely available to all staff.

For more information on dress code and other employment-related human rights issues, see Human Rights at Work 2008 - Third Edition

In November 2015, concerns started appearing in the media – raised initially by servers in a CBC Marketplace inquiry - about restaurants with dress codes that require female servers to wear short skirts, tight dresses, high heels and low-cut tops to work.

This media inquiry provided us an opportunity to restate our long-standing position on sexualized dress codes. The new statement, issued on International Women’s Day, is an opportunity to spread this message even further. We collaborated with the Human Rights Legal Support Centre (HRLSC) to inform employees about their rights.

Even though they may be commonplace and normalized across the restaurant industry, sexualized dress codes reinforce stereotypical and sexist notions about women. Human rights decisions dating back to the 1980s have found these to be a violation of human rights laws. Yet they continue in 2016.

Other forms of sex discrimination and sexual harassment are also very common in restaurants, and these dress codes may make women more vulnerable to sexual harassment by customers, management and other staff.  

Our focus on this issue is a “call to action” to employers to review their dress codes and remove discriminatory requirements. Employers make themselves vulnerable to human rights complaints if they do not.

What are the impacts of these dress codes on employees?

While focusing on dress codes may seem like a narrow issue, these are rooted in larger issues of sexism and discrimination in society where women are often sexually objectified. These dress codes can harm the dignity of women and reinforce sexist stereotypes. Gender-specific dress codes can also exclude trans and gender-diverse people, some racialized people and some people who practice a religion (creed).

The OHRC and HRLSC have heard many reports of women feeling ashamed and demeaned when they had to dress this way, and being afraid of sexual harassment. Employees may feel pressured to agree to these dress codes because they fear losing tips, shifts, or even their jobs.

Some people pointed out that the uniforms can be physically restraining and potentially damaging (in the case of being required to wear high heeled shoes on long shifts at work).

They can also lead to employees being sexually harassed. Research indicates that in the restaurant industry, sex discrimination and sexual harassment happen so often that they are often seen as just “part of the job.”^[1] Managers, customers and even staff may normalize the behaviour and minimize its effects. In one U.S. study, researchers found that rates of sexual harassment were higher in restaurants that required men and women to wear different uniforms.^[2]

Sexual harassment has severe and long-lasting effects. It can reduce employees’ morale, decrease productivity and contribute to physical and emotional effects such as anxiety, depression and posttraumatic stress disorder.

Many women experiencing these behaviours in the restaurant industry are young and working in their first jobs. So if their first job experience involves sexual harassment, they may think this is normal in other work environments. Research suggests that women may come to expect and tolerate other situations of sexual harassment based on a negative first experience in the restaurant industry.^[3]

What are some human rights cases that deal with this issue?

Human rights decisions dating back to the 1980s have found that dress code requirements that create adverse impacts based on sex violate human rights laws. Here are some cases that deal with the issue:

In McKenna v. Local Heroes Stittsville,^[4] a server’s shifts were cut after she expressed concern about wearing a new form-fitting uniform due to her visible pregnancy. Previously, she had been allowed to wear t-shirts that were loose enough to not draw attention to her pregnancy, but management changed the uniform to form-fitting lycra shirts. The Human Rights Tribunal of Ontario (HRTO) found that the respondents wanted to re-brand the sports bar by emphasizing the sexual attractiveness of its staff, who were almost all women between the ages of 19 and 25, and they saw the applicant’s visible pregnancy as inconsistent with their re-branding efforts. The HRTO found this to be discrimination and ordered the respondents to pay the woman $17,000 for injuring her dignity, and almost $3,000 in lost wages.   

In Mottu v. MacLeod, ^[5] a female server at a nightclub was required to wear a bikini top at a special work event. Instead, she wore clothing on top of her bikini top and complained to her union and employer. As a result, she was disciplined, assigned to a less desirable position at the club, and her work hours were reduced. The B.C. Human Rights Tribunal found these actions to be discriminatory.

In Noseworthy v. Canton Restaurant,^[6] a human rights tribunal found that a female restaurant employee was sexually harassed by the restaurant cook, who made unwanted sexual comments towards her and sexually assaulted her. These actions involved lifting up the woman’s skirt – which she was required to wear to comply with the restaurant dress code – and touching her thigh. The tribunal also found that the employer’s expectation for female staff to wear exclusively skirts, while male staff were allowed to wear pants, was discriminatory.

Don’t women who apply to be servers at these restaurants know what they are getting into? If they don’t like it, why don’t they work somewhere else?

All workplaces have to respect human rights laws – no one should have to go out and find another job just because they don’t want to be discriminated against. That is not a solution. And people also cannot be asked to give up their human rights to get or keep a job. The solution is for employers not to discriminate.

The reality is that in the current labour market, there are fewer options for these workers, who are often young women (36.8% of food and beverage servers in Ontario are women between the ages of 15 and 24^[7]). Youth have a harder time finding work than the general population and this is reflected in the much higher unemployment rate.^[8] Restaurants with these dress code requirements are common and may represent a large part of the restaurants in an area.

Food and beverage servers often work part-time and these policies can affect workers whose employment choices are limited.

Does the OHRC’s statement mean that women shouldn’t dress in a sexy way at work? What if they want to dress this way to get more tips?

There is a difference between what women choose to wear to work and what employers directly or indirectly tell women they must wear. 

We are not telling women what they should or should not wear to work. Some women may choose to wear more revealing clothing if this is what they are comfortable with. The employer can impose certain restrictions (e.g. wear the logo) as long as these restrictions are not discriminatory. 

What we are concerned about is employers imposing requirements, either through a written dress code or more subtle means, that female employees wear sexualized or gender-specific clothing, such as high heels, low-cut tops, tight dresses and short skirts.

Female employees should not be expected to meet more difficult requirements than male employees, and they should not be expected to dress in a sexualized way to attract clients. These requirements could be a violation of the Human Rights Code.

Don’t businesses have the right to have employees dress to fit their business “look” or “corporate image”?

They do – employers can have dress codes, but only if they don’t violate the Ontario Human Rights Code. The employer can impose certain restrictions based on their business needs as long as these are not discriminatory.

Any sex-based differences in the dress code must be legitimately linked to the requirements of the job. Where this cannot be shown, these dress codes will be discriminatory.

Where female employees are expected to meet more difficult requirements than male employees, or are expected to dress in a sexualized way to attract clients, this could be a violation of the Human Rights Code.

How can an employer make sure its dress code complies with the Human Rights Code?

Many different outfits can be offered to employees to meet the corporate image and still be inclusive of employees based on sex, gender identity, gender expression and creed (religion).

For example, an employer may offer a range of uniform options – perhaps everyone is expected to wear a white top with the company logo with black bottoms. The uniform options offered  are shorts or pants, shirts with either short or long sleeves and skirts at around knee or ankle length. The dress code states that employees, regardless of sex or gender identity, can wear whatever option they choose and religious head coverings of any type may be worn with the uniform.

Another option is for employers to let employees choose their work clothing within certain non-discriminatory guidelines they set out, without any pressure or coercion.

What can someone do if they feel their dress code is discriminatory?

As an employee, you can:

1. Try to resolve the issue internally if you can. It may help to:

• Talk to a trusted co-worker – is her experience the same?
• Download the OHRC infographics and policy statement to show your co-workers. 
• Write down notes about what you’re asked to wear or do. Make the link between your uniform and your sex, gender identity, gender expression or creed (religion).
• Ask your co-workers to co-sign a letter to your employer.  Enclose the OHRC policy statement. 
• Get free legal advice from the HRLSC if you think your job is at risk or your boss isn’t listening. 

2. You can also file a human rights complaint (called an application) with the Human Rights Tribunal of Ontario, but you have to do so within one year of the last event of discrimination.

Remember: the Human Rights Code protects you from reprisal, which means that it is illegal for your employer to punish you or threaten to punish you for objecting to the dress code. If they do, this can be added to any complaint at the Human Rights Tribunal of Ontario.

Aren’t there more important women’s issues that the OHRC should be working on?

The OHRC is working on many issues affecting women, including sexual and gender-based harassment, discrimination based on pregnancy and breastfeeding, and violence against Indigenous women and girls, among other issues. Our press backgrounder offers more details.

Addressing sexualized dress codes is also important. Thousands of people work in restaurants and bars across Ontario. Most of them are women (75%)^[9] and many of them are young and working in their first jobs. They are precariously employed in these jobs, and may be more vulnerable and less likely to know or be able to assert their rights.

While focussing on dress codes may seem like a narrow issue, these are rooted in larger issues of sexism and discrimination in society where women are often sexually objectified. This sexism is reflected in some industries where some employers use women’s appearance to attract customers and hire people because of how they look.

Hiring people based on aesthetic criteria, such as who looks sexually attractive, can lead to discrimination based on sex, age, race, disability, gender identity and creed. Sexual harassment is also very common in some restaurants and bars.

These dress codes may also lead to women being sexually harassed.

All of these issues are serious concerns and can create harmful effects for women who are trying to find employment, or are already employed. 

Businesses have to compete with each other – if one business is putting in place a dress code like this, won’t all of them have to?

All businesses operating under provincial law must comply with the Ontario Human Rights Code. Just because an employer thinks that using a sexualized dress code will increase profits and make the business competitive, this is no excuse for violating employees’ human rights.

In fact, the impacts of discrimination on employees can be costly for employers. Sexual harassment, for example, can result in decreased employee productivity, low morale, increased insurance costs from dealing with health care impacts, increased employee absenteeism, and potential legal expenses from dealing with human rights cases.  

If employers think that they can attract customers by making female employees wear sexualized outfits, they should also think about all the potential customers that may be alienated by these policies and choose to go elsewhere.

What if employers want to attract customers?

Just because an employer thinks that using a sexualized dress code will increase profits and make the business competitive, this is no excuse for violating employees’ human rights.

If employers think that they can attract customers by making female employees wear sexualized outfits, they should also think about all the potential customers that may be alienated by these policies and choose to go elsewhere.

Why does the OHRC include trans people in an International Women’s Day statement?

Trans people and people of diverse genders are often judged by their physical appearance and for not fitting or conforming to stereotypical ideas about what it means to be a “man” or a “woman.” These are rooted in sexism. Many trans people and people of diverse genders experience stigmatization, prejudice, bias and fear on a daily basis. Women, trans people and people of diverse genders may be vulnerable to harassment on various grounds, including gender-based harassment and sexual harassment.  

Gender-specific dress codes may create barriers for trans and people of diverse genders by preventing them from dressing in a way that reflects their lived gender identity. This could be discriminatory under the Code.  

It is important to celebrate the contribution of trans people and people of diverse genders on International Women’s Day just as it is to recognize the inequalities and struggles that people continue to face.